from the you-what-now? dept

Addison Cain Really Doesn't Want You Watching This Video About Her Attempts To Silence Another Wolf Kink Erotica Author

Way back in the previous century of May, we wrote about a truly bizarre (but, not actually uncommon) story of someone abusing the DMCA to get a competitor's book disappeared. There was a lot of background, but the short version is that an author, who goes by the name Addison Cain (a pen name) and wrote a wolf-kink erotica book in the so-called "Omegaverse" realm (which is, apparently, a genre of writing involving wolf erotica and some tropes about the space), used the DMCA to get a competitor's book using similar tropes taken down. As we noted in our original article, both parties involved did some bad stuff. Cain was clearly abusing the DMCA to take down non-infringing works, while the person she was seeking to silence, going by the name Zoey Ellis (also a pen name) not only filed a (perfectly fine) DMCA 512(f) lawsuit in response, but also a highly questionable defamation lawsuit.

There was a lot of back and forth in that story, but eventually the publisher, Blushing Books, agreed that there was no infringement and worked out some sort of settlement. Cain herself had been dismissed from the case on jurisdiction grounds. Anyway, last week, YouTuber Lindsay Ellis (no relation to Zoey Ellis, which, again, was a pen name) created a truly amazing one hour video analysis of the Cain/Ellis legal dispute that does a very good job covering many of the gory details of the dispute and how it eventually fizzled out. I know it's an hour of your time that is partly about wolf-kink erotica and partly about copyright law, but I still highly recommend it (though, maybe watch it at 2x speed):

I mostly agree with the legal analysis, though I think she puts too much weight on the idea that a settlement has any precedential value (it doesn't).

It appears that someone who does not want you to watch the video is Addison Cain / Rochelle Soto. Because soon after Ellis posted the video, she posted part of a legal threat from a lawyer claiming to represent Cain.

The partial email has the subject: "Defamatory and harmful video content involving Addison Cain" and comes from Tynia Watson who I'm almost surprised to tell you is an actual copyright, patent and trademark lawyer in Oklahoma City. That makes the claims in the email even more embarrassing.

Ms. Ellis,

My firm represents Addison Cain. We are aware of your recent YouTube video and other postings related to lawsuits involving my client. In your video, you use my client's copyrighted content and make numerous false statements including statements from allegations made in the lawsuits that are not...

And then it cuts off. However, just the copyright claim is obviously bullshit. I mean, it gets to the heart of what we wrote about in our first post, about how frequently assholes abuse copyright law to falsely make claims to get something taken down. Copyright is, again, putting the force of the state into censoring criticism. At no point in the video is there any use of Cain's content that wouldn't be considered obviously fair use. Threatening otherwise is frivolous and makes both Addison Cain and Tynia Watson look ridiculous.

That this is all coming on the back of another lawsuit over Cain abusing copyright law to try to silence a competitor makes it worse.

Of course, this only made me even more interested to explore exactly what was in the video that has Cain so darn upset. There's a lot in there that makes her look bad, but one element is particularly damning. Throughout the ordeal, Cain had insisted that it was her (now former) publisher Blushing Books who did the DMCA all on their own. In a somewhat cloying blog post in which Cain claimed that Ellis' lawsuit was a nuisance lawsuit, Cain insisted that it was just her publisher filing the DMCA, not her. This is the same argument she makes in various legal filings as she seeks to be dismissed from the case, insisting that the publisher sent the DMCA notices entirely on their own, without Cain even knowing about it (to clarify the paragraph below, Soto is Cain's real name, and Draft2Digital is one of the ebook retailers that received a DMCA notice):

The most relevant inquiry in this case is whether Plaintiff has proven that Mrs. Soto “purposefully directed [her] activities at residents of the forum state.” Old Republic Ins. Co. v. Cont’l. Motors, Inc., 877 F.3d 895, 904 (10th Cir. 2017). Plaintiff believes that it has satisfied this burden by presenting one lone email, sent from the Office Manager of Blushing to Draft2Digital, which claims that the company had “been contacted by the author Addison Cain regarding an infringement on her titles.” See Doc. No. #6-3. This cursory comment in the forwarded email was immediately contradicted by the sender when she attached the DMCA takedown notice that was sent by Blushing’s Office Manager. Mrs. Soto has never had any direct communication with Draft2Digital and any indication to the contrary stated in the forwarded email where the employee of Draft2Digital appears to have mistakenly equated the publisher with the author should not be used as credible evidence to establish personal jurisdiction.

Key point: in her filing, Cain insists that she never instructed her publisher to file the DMCA notices. Publicly, she also insisted that it was all the publisher and that she had nothing to do with it. Except, as the video above points out, later discovery... shows that was not true. At all.

Discovery turned up an email thread between Cain/Soto and Blushing Books in which Cain tells Blushing to send the DMCA notices and saying she'll remain "naive" and "hide behind" the publisher in public:

The key paragraphs are the one in which she tells Blushing to send the DMCAs:

I would not write the author a warning letter. She is aware of what she did and has already stirred up shit and lied by omission. File the DMCAs immediately to Amazon, iTunes, and B&N (should only take 5 mins each). If you want to write her afterward with demands to see her financials, by all means go for it.

And then the paragraphs in which she says she'll play innocent and naive and pin the blame on Blushing if there's any backlash:

If amazon, iTunes, and B&N comply with the DMCA (which they should considering the evidence) and a stink arises, I am prepared for the backlash. I went through it with Reborn, and I'm not afraid. To settle it down, I will deflect to blushing and remain distant and naïve. "Readers sent in complaints. The publisher filed a DMCA based on evidence they uncovered of copyright infringement. Any issues should be raised with them. This is out of my hands." And I will remain silent publicly, unless it gets to a point that a single, professional post on the topic (once again deflecting to the publisher) needs to be posted.

Some people will be reactive right out of the gate, but that's why I have a publisher to hide behind.

Amusingly, in that email she also responds to a court ruling that her publisher sent her regarding a failed copyright infringement case between two authors of "bodice ripper" erotica. Cain gives a... weird legal analysis:

As it was a summary judgement [sic], I'm not concerned. The plaintiff should not have made that mistake, and their lawyers should have known better to use a summary judgement [sic] on a copyright case.

What? That sounds like someone who is unaware of what a summary judgment is. Anyway, then there's a further email thread in which the publisher agrees that Cain will "hide behind" the publisher so as not to look bad. This is in response to Cain sending the publisher a proposed Facebook post that, again, throws all the blame on the publisher and insists she had nothing to do with it:

My publishing house has chosen to take legal action against another author for plagiarism and copyright infringement of one of my books. They own the rights to print and distribute my story, and should an outside influence try to profit from it, they are legally bound to respond. This is outside of my control.

This is wrong legally and factually, but hey, the publisher agreed to it:

Key line:

I think your decision to hide behind Blushing and paint us as the instigators is how it absolutely should be. Let us take the heat. All you have to say is "My publisher chose to take action. It was and continues to be out of my hands." Let people get mad at us.

And, sure, that's fine if she wants to lie to her fans, but in court, you can't do that. But she did, again insisting that she had nothing to do with the DMCA notices, when it's beyond clear that that was false.

This eventually led to Zoey Ellis asking for Cain/Soto to be held in contempt and sanctioned for perjury. Three days later the case settled.

The YouTube video above discusses all of this. And you might understand why Cain/Soto would be upset about it. But, by fucking now she should have realized that sending bogus claims of copyright infringement are a bad idea -- especially to someone who just spent quite some time learning about the ins-and-outs of copyright law.

Either way, the threat itself is yet another attempt to bully someone into silence via questionable copyright claims. If Cain/Soto actually goes ahead with this, she might have to learn not just about what summary judgment means, but also anti-SLAPP laws. And, yes, as we've discussed Virginia (where Soto lives) has a weak anti-SLAPP law, but they're expected to get a new one soon, and it would apply to existing cases -- meaning that if she did go ahead and she, Soto, may end up paying Lindsay Ellis' legal fees. One would hope that Tynia Watson would alert her client to this possibility.

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